cal invasion of another's property, as in Ashley v. Port Huron (56); but it seems that the rule ought to be that if the city creates a dangerous situation which did not previously exist and injury results from that, it should be responsible therefor. That was the view taken in Gould v. Topeka (57) in which the injury for which plaintiff recovered resulted from being thrown over the side of an embankment built by the city without any railing or lights, the original plan calling for none. The tendency of the later cases seems to be in the direction of compelling the city to adopt a reasonably safe plan as well as to execute it without negligence after it has adopted it (57), though many still follow the older rule (58).

§ 64. Liability of public corporations in tort for ultra vires acts. Since a corporation of any kind is not a natural person, the law has always had considerable difficulty in dealing with the question of the responsibility of the artificial legal person for acts done in its name by its members or officers. On the one hand it is urged that since the corporation is only an artificial and not a natural person, it can do only those things it is authorized to do; on the other, it is argued that in reality the law simply treats the group of persons who are members of the corporation as one person for convenience, and that the group really constitute the corporation. Space fails us to go into this discussion, and we must content ourselves with noticing that today private corporations are held to a very wide responsibility in tort, even for acts involv

ing malice, such as malicious prosecution. In dealing with public corporations, in addition to the difficulties arising in connection with private corporations, we have the additional fact to deal with that usually the members of the corporation, the voters, do not authorize the doing of particular things, as do the stockholders of a private corporation at the stockholders' meeting, but merely elect representatives who do all that is done in the name of the city (59). The usual problem is whether the city or other public corporation is liable for wrongful acts committed by their representatives in conection with undertakings not authorized by the charter of the corporation. To begin with, it is clear that all torts are in a sense ultra vires, i. e., beyond the powers of the corporation. It is clear, however, that any sensible system of law must hold the corporation responsible for injuries wrongfully inflicted on other persons by their representatives who are engaged in carrying on undertakings which are duly authorized by the charter and are of a private and corporate character. In fact, we have up to this point assumed that to be the rule, and the discussion in the preceding sections shows that it is. The real difficulty begins when the officials of the city or other public corporation undertake a work not authorized by the charter and in carrying it on injure some one. In the space at our command we cannot go fully into a discussion of the cases dealing with this subject. If any general rule can be formulated, it amounts very nearly to this: If the work undertaken and in the course of which the injury occurs be within the

(59) The introduction of the initiative and referendum will, of course, change this in many cases.

general scope of the authority conferred by the charter upon the municipality and the officers concerned, although actually in excess of those powers, the city is liable; but if the undertaking be wholly beyond the powers of the municipality and its officers, no liability rests upon the corporation.

§ 65. Same: Illustrations of non-liability. Perhaps the distinction intended to be drawn will appear with sufficient clearness from the following cases. In Anthony v. Adams (60) the selectmen of a town caused a dam to be erected, in such a manner that plaintiff's land was flooded. The town had under no circumstances any authority to erect a structure of this kind, and the plaintiff was therefore denied a recovery. Similarly, in Albany v. Cunliff (61) the authorities of the city of Albany assumed to build a private bridge across a basin to a pier in the Hudson river. The only authority to do this was contained in an unconstitutional statute, which was, of course, no authority whatever. Owing to the improper and negligent construction of the bride by the city's officers, the bridge fell and plaintiff was injured. As the undertaking was wholly beyond the city's powers, judgment was given for the defendant city. In another case the city council called a meeting for political and philanthropic purposes, and through the negligent management of the meeting by the city officers, an injury resulted to a person present. The city was held not liable, the calling of such a meeting being wholly beyond the city council's power (62). The

(60) 1 Metc. (Mass.) 284.

(61) 2 N. Y. 165.

(62)

Boyland v. New York, 1 Sandf. (N. Y.) 27.

same result was reached where the city charter forbade the laying out of a street so that it would run over any site of any building the expense of removing which would be more than $100. The city officers who had charge of laying out streets violated this provision, and the land owner concerned sued the city, but failed to recover. It is possible to criticize this case on the ground that the laying out of the street was within the general powers of the city officers, though in excess of them (63).

§ 66. Same: Illustrations of liability. This brings us to a discussion of cases in which the city is held liable. In Norton v. New Bedford (64) the city was constructing a sewer, acting through the officers who had charge of sewer construction. Being sued for injuries caused by negligence of those in charge, it defended on the ground that the construction of the sewer was illegal and without authority of law, because of certain irregularities in the proceedings of the city board which had authorized the building of the sewer. This was held to be no defence, the undertaking being within the general scope of the powers of the city, though in excess of them in the particular case. In a similar case in Wisconsin a town was held liable for defects in a bridge erected by the officers of the town in pursuance of a vote of the electors, although the erection of the particular bridge under the circumstances was illegal (65). In another case the village of Saratoga Springs, N. Y., constructed a sewer in part through private lands. It being doubtful whether the

village had any power to construct sewers elsewhere than in the street, the village sought to escape liability for sewage cast upon plaintiff's land because of faulty construction of the sewer, but was held liable (66). Here, again, the village clearly had general power to build sewers, but construction of the particular sewer was actually illegal, and beyond their powers. This distinction is a nice one, difficult of application, and many conflicting decisions can be found in the books.

(66) Stoddard v. Saratoga Springs, 127 N. Y. 261.